September 29, 2005

I may not know why a caged bird sings--but I've got my guesses

by emptywheel

And so the martyr for the First Amendment ends up betraying her source.

Around 6 pm tonight, the Philly Inquirer first broke the story that Judy Miller had been released from jail after agreeing to testify. Judy claimed she had been released by Scooter Libby to talk. But if I had to guess, I'd say she backed Libby into a corner so she could get her "release."

The Inquirer story, at first, depicted Libby's side as rather taciturn about the development.

Libby's lawyer, Joseph A. Tate of Philadelphia, declined to comment.

Since then, however, he has undeclined to comment.

Miller, whose incarceration sparked a national debate about the First
Amendment and unnamed sources, spoke from jail two weeks ago with Vice
President Dick Cheney's chief of staff, I. Lewis Libby, according to
Libby's lawyer, Joseph Tate.

During that conversation, Libby reaffirmed that he had released Miller
from a promise of confidentiality more than a year ago, Tate said.
Miller had been concerned that a Libby's blanket waiver releasing any
journalist might have been coerced.

"She wanted to hear it directly from Mr. Libby," Tate said. "And he assured her that it was voluntary." [emphasis mine]

I wonder whether Tate declined to comment at first because he needed to make a call to his client to warn him? Did he not expect this was coming???

The NYT, which was probably the very last major news outlet to report this, at least had the good grace to allow Doug Jehl to share the byline with Dave Johnston. Their article has a couple of interesting details. For example, ol' Doug Jehl sounds a little skeptical that Judy got a real waiver. And while Judy will never utter Libby's name publicly, you can be sure Jehl's going to.

Her decision to testify came after she obtained what she described as a
waiver offered "voluntarily and personally" by a source who said she
was no longer bound by any pledge of confidentiality she had made to
him. She said the source had made clear that he genuinely wanted her to
testify.

That source was I. Lewis Libby, Vice President Dick Cheney's
chief of staff, according to people who have been officially briefed on
the case. [empphasis mine]

Or maybe I'm just being skeptical--perhaps Jehl and Johnston simply described it carefully to make sure Judy got to describe the waiver in her own words (as Cooper was anxious to do when he testified).

But there is reason to be skeptical. After all, if Judy's own newspaper is describing these negotiation as strained, you have to wonder why she thinks the waiver was freely granted.

The agreement that led to Ms. Miller's release followed intense
negotiations between Ms. Miller; her lawyer, Robert Bennett; Mr.
Libby's lawyer, Joseph Tate; and Mr. Fitzgerald. The talks began with a
telephone call from Mr. Bennett to Mr. Tate in late August.Ms. Miller
spoke with Mr. Libby by telephone earlier this month as their lawyers
listened, according to people briefed on the matter. It was then that
Mr. Libby told Ms. Miller that she had his personal and voluntary
waiver.

But the discussions were at times strained, with Mr. Libby and
Mr. Tate asserting that they communicated their voluntary waiver to Ms.
Miller's lawyers more than year ago, according to those briefed on the
case. Mr. Libby wrote to Ms. Miller in mid-September, saying that he
believed her lawyers understood that his waiver was voluntary.

Others involved in the case have said that Ms. Miller did not
understand that the waiver had been freely given and did not accept it
until she had heard from him directly. [emphasis mine]

Like Cooper's lawyer, Judy's lawyer called her source's lawyer. And over the course of over two weeks (from late-August to two weeks ago), they negotiated this "voluntary waiver." Of course, Cooper's lawyer was responding to Rove running his mouth on teevee, insisting that he had released his sources. Judy's lawyer was responding to ... no new information, at least not that we know of.

Meanwhile, Judy and the rest of the NYT, which after all has been screaming martyrdom for several months, are trying to put betraying their principles in the best light. First Sulzberger:

The Times' publisher, Arthur Sulzberger Jr., said in a statement that
the newspaper supported Ms. Miller's decision to testify, just as it
backed her earlier refusal to cooperate. "Judy has been unwavering in
her commitment to protect the confidentiality of her source," Mr.
Sulzberger said. "We are very pleased that she has finally received a
direct and uncoerced waiver, both by phone and in writing, releasing
her from any claim of confidentiality and enabling her to testify." [emphasis mine]

What was it, Monday, when they last decried the injustice of her incarceration in an editorial??? And now Judy:

Ms. Miller said she believed the agreement between her lawyers and Mr.
Fitzgerald "satisfies my obligation as a reporter to keep faith with my
sources." She added: "I went to jail to preserve the time-honored
principle that a journalist must respect a promise not to reveal the
identity of a confidential source. I chose to take the consequences -
85 days in prison - rather than violate that promise. The principle was
more important to uphold than my personal freedom." [emphasis mine]

Judy's sense of logic was never so good. So perhaps she doesn't see the logical inconsistency--if Libby's original waiver was really freely given (and his more recent one was, um, negotiated), how is testifying to the grand jury any different now than it would have been in July, or last September? Or perhaps she just wants to play the martyr some more.

But there is more than posturing in the NYT article. There are, for example, more details about just how negotiated this agreement was. First, Fitz had to reassure Judy that talking to Libby wouldn't get her busted for obstruction.

Mr. Keller said that Mr. Fitzgerald had cleared the way to an agreement
by assuring Ms. Miller and her source that he would not regard a
conversation between the two about a possible waiver as an obstruction
of justice.

I wonder how that came up? Seems to me, for someone who was just "reporting" a story, Judy or Bennett or Abrams or someone was awfully worried about the appearance of Judy's First Amendment stance. Or maybe obstruction of justice had already come up in conversation with Fitzgerald?

Fitz also had to reassure Judy that he wouldn't ask about any of her other sources.

Bill Keller, the executive editor of The New York Times, said that Mr.
Fitzgerald had assured Ms. Miller's lawyer that "he intended to limit
his grand jury interrogation so that it would not implicate other
sources of hers." [emphasis mine]

Again, I wonder how that came up. Or why Judy was concerned about it. Does Judy think some of her other sources might be implicated in this? Whatever might that mean??? (Damn, I hope if Fitzgerald expects Judy to have information that might implicate her other sources, he has the information already!)

Since we're discussing the issue of other sources Judy might implicate, perhaps we should look at the timing of this, which I find incredibly interesting.

We know from Arianna's now vindicated scoop that Bolton visited Judy in mid-August. Negotiations between Bennett and Tate started a week or so after that. That timing doesn't mean anything, but it's sure worth noting. The negotiations, as I pointed out, took at least two weeks. That's a lot of billable hours Judy and Libby are paying to come up with a voluntary waiver (or maybe we should assume those fees will be paid by Times Select??). And just as interesting, Judy says she was released two weeks ago. We're to believe, you see, that Judy rotted in jail for two more weeks while she pondered Libby's voluntary waiver. What's up with that?

Neither Jehl's article nor the Inquirer could resist making a few jabs at NYT management. Jehl points out that questions he has been asking have not yet been answered.

Mr. Keller, the newspaper's executive editor, has declined to say
whether she was assigned to report about Mr. Wilson's trip, whether she
had tried to write a story about it, or whether she ever told editors
or colleagues at the newspaper that she had obtained information about
the role played by Ms. Wilson.

Gosh, a set of really good questions, Mr. Jehl. Ones I've been asking for months. And the Inquirer, after noting that the NYT isn't returning calls to the paper that scooped this story...

A New York Times spokeswoman did not immediately return a call for comment.

...reminds readers of the rock solid guarantees Judy's boss was making at a time not long before her lawyer started negotiations with Libby's lawyer.

Times Managing Editor Jill Abramson said last month that Miller seems
resolute in her determination to endure jail rather than testify.

Methinks the NYT doesn't like being embarrassed (again) too much.

One more comment. Judy got out today around
4. She testifies tomorrow morning. Any bets she's going to be very
closely monitored tonight? Any bets she'll be getting some phone calls?

So, this is all a chess game and Fitzgerald has had months to plan his moves. Did anything new come out today that gives us any further insight into his strategy?

I'm reading these articles right, Fitzgerald is making at least 2 seemingly large concessions:

1) not to use any details of Miller & Libby's meetings to charge either with obstruction

2) not to ask Judy about any of her other sources

And, there's nothing in any of the articles about immunity for Miller.

Here's what I don't understand - since this was a private conversation between Libby & Miller, what's to stop her from saying their conversation had nothing to do with Plame? Fitz would have to have some way of using the threat of a perjury charge to force her to be honest, right? Or does he have something else on her that he's agreed not to pursue if she gives him want he wants on Libby?

In any case, since he's accepting such limited scope of testimony, I guess he's got everything he needs except one more confirmation on Libby's culpability, so would you say it's likely that he may release whatever indictments he has almost immediately? Or, do you have some concern that this whole turn of events represents a backing down by Fitzgerald in terms of how far he's trying to go with this?

Well the timing makes sense to me -- throw Libby to the dogs & get the indictments out of the way during the WORST BUSHCO NEWS SEASON OF ALL TIME, nobody will be paying much attention anyway (or so they think). I'm not too happy about the fact that Judy doesn't have to reveal information about her "other sources" (I'm not even sure what that means, but if she's going to walk, he should be able to ask her anything.)

Oh and a word about David Johnston. I've known him since I was 18, he was a hard-core, muckracking liberal in San Francisco at the Bay Guardian for years. Haven't had much contact with him in a while, but he can't be comfortable with Judy Miller's Iraq "reporting" *cough* unless he's changed an awful lot in the intervening years.

A comment regarding the two week delay, until today. What if it was Fitzgerald's call, getting his way with Judy at a time of his choosing to put pressure on his other targets?

[getting kabalistic: I think Judy went to jail on the anniversary of her conversation with Libby, July 8; the WaPo article discussing deliberate administration leaking of Plame's name to 6 reporters was on September 30 of that year, I believe; the WaPo article discussing the Brewster-Jennings damage then was a few days after this]

Sorry to be overly dramatic but this seemed an interesting idea. Another great posting emptywheel.

First, I don't think Fitz needs Miller to get to her first source. I think the NYT turned enough materials over that he doesn't need her corroboration. Remember, Arianna said the NYT was getting more realistic, not Judy. They turned over earlier materials (just as Time turned over their materials) which was enough evidence to sink Judy on conspiracy if she didn't testify.

Second, I think the obstruction concerns were over conversations in jail. Not over the original conversations.

Third, Fitz is none too worried about what Judy will say tomorrow. She's had TWO WEEKS in which he has been grilling her. And I bet there's a signed statement already too. No way he let her out before he made sure he knew what she was going to testify (and if something happened to her ...)

>And I bet there's a signed statement already too. No way he'd let her out before he made sure he knew what she was going to testify (and if something happened to her ...)

Yikes... well, Fitzgerald just indicted those 16 "Insane Deuces" gang members, and the Gambinos before that, so I guess he's used to planning for that sort of eventuality. It's scary, really. How far will these guys go to stay in power? Or to stay out of the Alexandria Detention Center? And with the kind of power they wield, what desperate options are available to them, and how tempting is it to use them after having all these months to torture themselves about it? They're only human. Cheney's been staring down the Grim Reaper since he was in his 30's and Rove doesn't look like a healthy man. In their own minds, how long has it been since they wrote off any sense of morality?

I guess what I'm saying is: they've committed one unthinkably immoral act after another ... but now, their careers, their fortunes, and their very freedom are all at stake. They've devoted their lives to amassing ultimate power and wealth, but if convicted, they're unlikely to live out their sentences. What do people like Karl Rove and Dick Cheney do when they're cornered?

"A Times story late on Thursday revealed that as part of Miller's agreement, one of her attorneys, Robert Bennett, gave Patrick J. Fitzgerald, the federal prosecutor, edited versions of notes taken by Miller about her conversations with I. Lewis Libby."

Actually, there is no indication NYT turned over notes. Judy did, but only those pertaining to the July 8 Libby conversation. So either the NYT somehow communicated internal discussions. Or turned over notes. Or Fitz doesn't have information on Judy's earlier sources from NYT or Judy.

I'm primarily interested in the NYT turning over notes relating to earlier sources of Judy. He has said he won't ask her about earlier sources in the GJ testimony, which makes sense to me, since he hasn't shown a judge that he could only get that information from a journalist, and therefore would not want to infringe on Judy's First Amendment. (In all cases I know of, journalists only have to expose their source if it's the only way to get the evidence.) So I'm just trying to figure out how, if Bolton is involved, he has the evidence to indict him. One option is the NYT revealing some information about the Judy's speculative earlier article. But I suspect there are other ways.

If I had to place a bet, I'd say the visit from Bolton to Judy was the source of the conversation regarding potential obstruction charges for Judy -- and the reason that Bennett consulted with Fitz prior to any "negotiations" with Libby on an "uncoerced waiver." Emptywheel is absolutely right in the thread, above, that Fitz will only be asking for information that is available only through Judy in terms of her testimony -- if he can get the information elsewhere, case law requires that he get it from a non-journalistic source. Also right that Fitz wouldn't be letting Judy's butt out of jail without nailing down all the particulars of her testimony through interviews before her testimony today -- you never know what can happen...cough...to your witness once they leave your custody prior to grand jury testimony on the record. Great reporting here, as always -- guess we'll see whether or not indictments start popping out everywhere and how far into the Iraq Working Group this extends.

The WaPo story, as reprinted in the SF Chronicle this morning, adds the following:

"According to a source familiar with Libby's account of his conversations with Miller in July, 2003, the subject of Wilson's wife came up on two occasions. In the first, on July 8, Miller met with Libby to interview him about weapons of mass destruction in Iraq, the source said.

"At the time, he aasked him why Wilson had been chosen to investigate questions Cheney had posed about whether Iraq attempted to buy uranium in the African nation of Niger. Lubby, the source familiar with the account said, told her the White House was working with the CIA to find out more about Wilson's trip and how he came to be selected.

"Libby told Miller he heard Wilson's wife had something to do with sending him but he did not know who she was or where she worked, the source said.

"Libby had a second conversation with Miller on July 12 or July 13, the source said, in which he told her he had learned that Wilson's wife had a role in sending him on the trip and that she worked for the CIA. Libby never knew Plame's name or that she was a covert operative, the source said."

The "source" is probably Tate but could be Libby himself. Libby may be trying to avoid being made the fall guy. In this version he isn't the original leaker. That could still have been Bolton via Fleitz to Cheney. And that piece comes into place between July 8 and 12. And we still have the question who talked to Novak and who gave Novak Plame's name, or whether he got it from Who's Who. Libby oviously didn't hear it from a reporter, which makes it less likely that Rove did either. I still think that is the fact Fitz is trying to nail down. That, and the original leaker. But the OL is off the hook if he gave the info only to people with the requisite security clearance, as Libby almost certainly was.

The WSJ also says that Libby assumed that Miller was protecting other sources and that he thought he had given her the waiver a year ago. Which may mean he had reason to kow she had talked to others.

After reading more it looks to me like Judy didn;t find martyrdom as fun as she thought it would be and was afraid Fitz might try to extend her stay. The rest is a ruse, unless Libby is afraid of being made the (latest) fall guy and wanted his story out there.

I think Bolton, Libby and Miller agreed to say it was Libby because it was a way to protect the original leaker, John Bolton. Because State Department records show that Bolton was actively involved in creating and promulgating the State Department Fact Sheet which contained the false claim the Iraq had purchased yellowcake from Niger, used as the basis for the claim which Secretary of State Colin Powel made to the UN, it might seem clever to them to distance the leaker from the forger. In any case, the UN World Summit is over and Bolton succeeded in defeating its purpose, so maybe now Judy can sign ze papers? Mission Accomoplished.